Compulsory licensing: A solution to the current debate on anti-covid vaccines?

May 2021

Yesterday we learned that Joe Biden’s Administration (USA) has decided to support the proposal that several countries have submitted to the World Trade Organisation (WTO) to temporarily suspend intellectual property protection for vaccines against the coronavirus, i.e. the temporary suspension of patents. The European Union is also discussing this possibility.

Well, although we do not know what the outcome of this proposal will be, it is worth mentioning that this would imply a totally extraordinary measure in the patent systems.

There is no doubt that, in this and other pandemics, it is public health that is at stake. What we must not do, therefore, is to play our intellectual property system off against the health of an entire planet, which, at all costs, must always go hand in hand. This is precisely the ultimate purpose of the patent system: to stimulate inventions that improve people’s health and quality of life.

What does protection of a vaccine through a patent entail?

A patent is a set of exclusive exploitation rights granted to the owner of an invention, product or technology in a given territory to exploit it commercially and exclusively for a given period of time, usually 20 years.

This means that the patent holder has the power and the right to prevent third parties, whether natural or legal persons, from manufacturing, exploiting, selling or using the invention in the protected territory for as long as the patent is in force.

In other words, the holder of the invention is granted a temporary monopoly of exploitation of the invention in the territory in which protection has been applied for in order to promote innovation and new developments in any field of technology. Within 20 years of the patent application (in the vast majority of countries), the invention falls into the public domain (i.e. everyone can put it into practice).

However, during those 20 years, the owner can prevent third parties from putting his invention into practice without his prior consent. So, to return to the example of vaccines, whoever invented it can prevent others from manufacturing, exploiting, selling or using it.

This, in a pandemic scenario, is at least somewhat controversial, since the health of billions of people is at stake. Hence the debate that has arisen in recent months over whether or not to suspend (temporarily) the patents on antiviral vaccines.

What is involved in releasing vaccines from patent and why is this not the solution?

The scenario from which we must start is a scenario where there are, on the one hand, companies that have invested many millions in achieving inventions (with many research teams, many lines of work that do not achieve results, etc.) and, on the other hand, the interest in ending the pandemic by finding a global solution to the problem. It is exactly at this point that the debate on whether or not to temporarily suspend vaccine patents arises.

The authorities who have announced that they are considering “suspending” patent rights have not given much detail on what this would entail. All indications are that they would suspend the power of patent holders to ask judges to prevent others from using the vaccines. But many, many questions remain: Will patent holders have to be paid? If so, who would pay: the state that needs the vaccine or the companies that manufacture it? What would be a fair price?

The crux of this debate is the claim that other countries and territories, such as India and South Africa, which are being hard hit by this virus, could produce these medicines that attack Covid-19 without the need to go through the formalities of applying for a patent, which would delay the process and prevent the vaccination of a large part of the population.

However, there are mechanisms offered by the legislations to supply the market, without the need to temporarily suspend vaccine patents, and these are compulsory licenses.

This mechanism of compulsory licensing allows states to authorize the exploitation of the vaccine or vaccines by third parties, without the authorization of the owner, in exchange for the payment of royalties, and occurs when there are reasons of public interest; a case in which the Covid-19 pandemic could perfectly fit in.

The aim of these patent licenses, in addition to encouraging innovation and scientific progress and safeguarding the health of citizens, is, on the one hand, to supply the global market, including those who may not have the necessary means to produce the vaccine, and, on the other hand, the corresponding compensation for the holder who has discovered the invention and, consequently, obtained the patent. For we must not forget that, without the mind(s) of the person(s) who discovered the formula in question and the private resources that someone has invested in it, no vaccine would be possible, and that, logically, deserves to be rewarded.

Thus, what is clear is that the patent holder cannot be an impediment to addressing a public health problem, but neither can it be claimed that the entire cost of supplying vaccines should be borne by the patent holder, hence the compensation to be made to the holder by the State, which can be achieved through the figure of compulsory licensing or any other figure that can be agreed upon.

What about those countries that have no resources at all for vaccine production?

In these cases, the role of the WHO, within the framework of the UN, is fundamental, which would come into play through the corresponding diplomatic tools, to create funds to compensate the patent holders, and in the same way, to supply all those who do not have the means or resources to produce and/or acquire the vaccine.

This brings to mind the WHO-led Covid-19 Global Access Mechanism (COVAX), which is “a global initiative involving more than 100 countries to work with vaccine manufacturers to ensure that countries around the world (including low-income countries) have equitable access to safe and effective vaccines once they have been licensed and authorized“.

We must never forget that patents, in any field of technology, but especially in science, are always aimed at progress and innovation, as well as the discovery of new formulas and technologies that help us to combat situations such as the one we are experiencing today.